Citation Nr: 1122948
Decision Date: 06/15/11 Archive Date: 06/28/11
DOCKET NO. 10-10 737 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Whether the appellant may be recognized as the surviving spouse of the Veteran for VA benefit purposes, to include entitlement to death pension and dependency and indemnity compensation (DIC) benefits.
REPRESENTATION
Appellant represented by: Florida Department of Veterans Affairs
ATTORNEY FOR THE BOARD
David Traskey, Associate Counsel
INTRODUCTION
The Veteran had active service from January 1967 to August 1968 and from November 1990 to August 1991. The Veteran died in April 2007. The appellant seeks benefits as the Veteran's surviving spouse.
This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of January 2009 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO).
FINDINGS OF FACT
1. The Veteran and the appellant were married in March 1998 and divorced in September 1999. The Veteran died in April 2007.
2. Lay statements regarding continuous cohabitation between the Veteran and the appellant from the date of the divorce to the date of the Veteran's death lack credibility.
3. VA treatment records generated after the divorce and prior to the Veteran's death described him as being divorced and/or living alone. Compensation award sheets listed no spouse and the Veteran was paid for his service-connected disabilities at the single rate without dependents.
4. The Veteran's death certificate listed his marital status as "divorced" and described the appellant as his "ex-wife." No surviving spouse was listed on the death certificate and the Veteran and the appellant were noted to maintain separate residences in different cities at that time.
CONCLUSION OF LAW
The criteria for recognition of the appellant as the surviving spouse of the Veteran are not met. 38 U.S.C.A. §§ 101(3), 103, 1102, 1304, 5124 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54, 3.205 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant claims VA death pension benefits, to include DIC, as the surviving spouse of the Veteran, who died in April 2007. See December 2008 VA Form 21-534. In particular, the appellant indicated that she and the Veteran were at one time married to one another. They subsequently divorced, but the appellant maintained that they continued living together (and that she cared for him) until his death. See May 2009 statement. Lay statements were provided by neighbors in an effort to show that the appellant and the Veteran allegedly lived together for over 20 years, including at the time of the Veteran's death. See November 2008 statements from S.D. and K.C.
When a veteran dies, his or her surviving spouse may be eligible to VA death benefits, to include DIC benefits, death compensation, and death pension. See 38 U.S.C.A. §§ 1121, 1310, 1541 (West 2002 & Supp. 2010); 38 C.F.R. § 3.50(a) (2010). In order to establish her status as claimant, it must be shown that the appellant had a valid marriage to the Veteran. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991).
A surviving spouse for VA purposes is defined as a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j) (2010) and who was the spouse of the Veteran at the time of the Veteran's death; and (1) who lived with the Veteran continuously from the date of marriage to the date of the Veteran's death except where there was a separation which was due to the misconduct of, or procured by, the Veteran without fault of the spouse; and (2) has not remarried or has not since the death of the Veteran lived with another person of the opposite sex and held himself/herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.50(b), 3.53 (2010). A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation under the appropriate circumstances. 38 C.F.R. § 3.54 (2010).
VA defines a "marriage" as a marriage valid under the law of the place where the parties resided at the time of marriage, or the laws of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c) (West 2002); 38 C.F.R. § 3.1(j). According to Black's Law Dictionary, a "common law marriage" is defined as a marriage not solemnized in the ordinary way (i.e., non-ceremonial) but created by an agreement to marry, followed by cohabitation, a consummated agreement to marry, marriage contract, per verba de praesenti, followed by cohabitation. Such a marriage requires a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations. Black's Law Dictionary 144-45 (5th abridged ed. 1983).
VA will accept, for the purpose of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant. 38 U.S.C.A. § 5124(a), (b) (West 2002); 38 C.F.R. § 3.204(a)(1) (2010).
VA shall require corroborating evidence to verify a marriage where: the claimant does not reside within a state; the claimant's statement on its face raises a question of its validity; the claimant's statement conflicts with other evidence of record; or, there is a reasonable indication, in the claimant's statement or otherwise, of fraud or misrepresentation of the relationship in question. 38 U.S.C.A. § 5124(c); 38 C.F.R. § 3.204(a)(2). Failure to furnish the higher class of evidence, however, does not preclude the acceptance of a lower class if the evidence furnished is sufficient to prove the point involved. 38 C.F.R. § 3.204(b). Marriage is established by one of the following types of evidence (in the order of preference):
(1) Copy or abstract of the public record of marriage, or a copy of the church record of marriage, containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages if shown on the official record;
(2) Official report from service department as to marriage which occurred while the Veteran was in service;
(3) The affidavit of the clergyman or magistrate who officiated;
(4) The original certificate of marriage, if the VA is satisfied that it is genuine and free from alteration;
(5) The affidavits or certified statements of two or more eyewitnesses to the ceremony;
(6) In jurisdictions where marriages other than by ceremony are recognized the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived; or,
(7) Any other secondary evidence which reasonably supports a belief by the adjudicating activity that a valid marriage actually occurred.
38 C.F.R. § 3.205(a) (2010).
In the absence of conflicting information, proof of marriage which meets the requirements of 38 C.F.R. § 3.205(a) together with the claimant's certified statement concerning the date, place, and circumstances of dissolution of any prior marriage may be accepted as establishing a valid marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. Where necessary to a determination because of conflicting information or protest by a party having an interest therein, proof of termination of a prior marriage will be shown by proof of death, or a certified copy or a certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.205(b).
The appellant submitted the current claim in December 2008. She initially identified herself as the Veteran's surviving spouse and stated that she lived continuously with the Veteran from the date of their marriage to the date of the Veteran's death. See VA Form 21-534. That same month, the appellant executed a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative). Here, however, she identified herself as the Veteran's "ex-spouse."
The claims file contains documentation of the marriage between the Veteran and the appellant in Florida in March 1998. They both identified themselves as residents of Florida. In September 1999, they were divorced in the state of Florida. VA treatment records generated contemporaneously to this time period described the Veteran as being divorced and/or living alone. See VA records dated July 2000, December 2001, March 2002, January 2003, and November 2004. Additionally, compensation award sheets contained in the claims file listed no spouse and the Veteran was paid for his service-connected disabilities at the single rate without dependents.
The Veteran died in April 2007. The Veteran's death certificate listed his marital status as "divorced" and described the appellant, the informant of his death, as his "ex-wife." It was also noted on the death certificate that the Veteran and the appellant maintained separate residences in different cities at that time. No surviving spouse was listed on the death certificate. Nevertheless, the appellant contends that after their divorce they continued to live together until the Veteran's death.
Common law marriage, however, is not recognized in Florida. FLA. STAT. § 741.211 (2010). Therefore, a common law marriage cannot be established under Florida state law.
VA's General Counsel has held in a precedent opinion that an appellant's lack of knowledge that a common law marriage was not recognized by the appropriate jurisdiction is a legal impediment that does not necessarily bar recognition of the marriage for VA purposes. VAOPGCPREC 58- 91 (June 17, 1991). This is because under 38 C.F.R. § 3.52, the common law marriage could be "deemed valid" on the theory that the surviving spouse could have entered into the purported common-law marriage without knowledge of the fact that there was an impediment to the marriage. Colon v. Brown, 9 Vet. App. 104 (1996). The impediment referred to here would be the jurisdiction's non-recognition of a common-law marriage.
An attempted marriage will be 'deemed valid' if: (a) the attempted marriage occurred one year or more before the Veteran died; and (b) the claimant entered into the marriage without knowledge of the impediment; and (c) the claimant cohabited with the Veteran continuously from the date of the attempted marriage until his death; and (d) no other claimant has been found to be entitled to gratuitous VA death benefits. 38 U.S.C.A. § 103(a); 38 C.F.R. § 3.52.
The Board finds that the preponderance of the evidence is against a finding that the appellant and the Veteran were married prior to the Veteran's death as required by the law. Therefore, the appellant in this case is not recognized as the Veteran's surviving spouse as defined by VA. 38 C.F.R. §§ 3.50(b), 3.53.
Preliminarily, the Board acknowledges that the appellant and her neighbors submitted statements during the pendency of the claim designed to suggest that the Veteran and the appellant lived together for several years, including at the time of his death. See lay statements dated November 2008 and March 2009. These statements, in the Board's opinion, lack credibility and are, therefore, entitled to no probative value because they are specifically refuted by the objective evidence of record.
The Board notes that the appellant and the Veteran had at one time been married to one another (beginning in March 1998), but divorced in September 1999. The appellant, by her own account, confirmed the divorce. See March 2009 statement. VA treatment records generated after the September 1999 divorce and prior to the Veteran's death made clear that the Veteran was divorced and/or living alone. He was also compensated for his service-connected disabilities at the single rate without any dependents. No spouse was listed on the award sheets. The death certificate issued by the State of Florida also made clear that the appellant was the Veteran's "ex-wife" and that they maintained separate residences in different cities at the time of his death. The Veteran's marital status was described on the death certificate as "divorced" and no surviving spouse was listed. Their legally divorced status was evidently known to them and others, including but not limited to the State of Florida. This evidence also militates against a finding that the appellant was the Veteran's surviving spouse.
The Board also finds that the preponderance of the evidence is against a finding that the appellant and the Veteran were "deemed" married pursuant to 38 C.F.R. § 3.52. In this regard, there is no evidence of record to show that an attempted marriage occurred one year or more before the Veteran died. In fact, both the appellant and the Veteran were aware that they were divorced since September 1999 and there is no indication of record that they remarried or attempted to remarry at any time before his death. Moreover, the Board finds the Veteran's statements to VA medical providers regarding his status as divorced and/or living alone to be credible and highly probative. He made these statements in connection with medical treatment while the appellant's statements (and the other lay statements) were provided to VA in connection with a claim for monetary benefits. The post-death statements are not entitled to a finding of credibility as they conflict with statements that the Veteran made regarding his status as divorced and/or living alone when he was alive.
Although there is an "impediment" in this case (i.e., Florida's non-recognition of common law marriage), the objective evidence described in detail above specifically refutes the appellant's assertion (and those made by her neighbors) that she and the Veteran cohabitated for several years prior to his death and were together at the time of his death. On the contrary, the most probative evidence of record, which includes VA treatment records, the death certificate, and the appellant's subsequent applications for VA burial and DIC benefits, revealed that the Veteran and the appellant were divorced and maintained separate residences in different cities. Even if it may be true that the appellant and the Veteran cohabitated for many years, such cohabitation occurred in the state of Florida which does not recognize common law marriage. In addition, the evidence does not show that they held themselves as married after the divorce. To the extent that the appellant asserts that they cohabitated continuously after their divorce, her statements are refuted by the credible statements of the Veteran to VA medical providers that he was divorced and/or living alone. Therefore, the appellant and the Veteran cannot be said to have been "deemed" married at the time of his death in April 2007.
To qualify for benefits as a surviving spouse, the claimant must have been the Veteran's spouse on the date of his death. The law does not provide any relevant exception to this requirement. The Board is bound by the law and regulations in effect. In the absence of authorizing statutory or regulatory authority, the Board may not award payment of benefits. See Zimick v. West, 11 Vet. App. 45, 50 (1998) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 424 (1990) (payment of money from the [Federal] Treasury "must be authorized by a statute")). Based on the above analysis, the Board finds that the preponderance of the evidence is against a finding that the appellant was the Veteran's surviving spouse for VA purposes.
While the Board is sympathetic to the appellant's circumstances, including any time and energy expended in caring for the Veteran in the time leading up to his death, there is no legal basis on which to provide the appellant equitable relief. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The appellant is not recognized as the surviving spouse of the Veteran for VA benefit purposes, to include entitlement to death pension and DIC benefits, and her claim is denied.
Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
VCAA notice is not required in this case because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).
ORDER
Entitlement of the appellant to recognition as the Veteran's surviving spouse for VA purposes is denied.
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S.S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs